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EPC media alerts: July 2009

Your monthly EU media issues update direct from Europe's leading publishers

The following document is a regularly updated schedule of EU Media issues of interest to the EPC in order to give advance warning to journalists covering EU media issues. Please do not hesitate to contact us for further information: heidilambert@hlcltd.demon.co.uk.

Key issues for 2009

Media pluralism
Content online and licensing
State aid to public broadcasters
Media literacy
Data privacy
Energy labelling
Car advertising
Alcohol and food advertising
Gender stereotyping
Telecoms Package
ROME II and Brussels I
Market Abuse

Dates for the diary

Second half 2009 - Study on access of Young People to Culture
Summer/early autumn - Copyright
Autumn 2009 - Advertising - alcohol
Expected autumn - Energy Labelling Directive
Advertising - Cars - 2010
Advertising - Food - 2010
Autumn-End 2009 - Data Protection

More detail

Second half 2009 - Study on access of Young People to Culture

This study will seek to identify obstacles to the access of young people to culture as well as good practices in making this access easier.

Summer/early autumn - Copyright

Proposals due following Green Paper on Copyright in the Knowledge Economy consultation

The Commission's Communication on Copyright in the Knowledge Economy is expected to be adopted this autumn'09. Consultation on their earlier Green Paper ended in November'08 and stakeholder submissions were uploaded onto the Commission's website in April'09 the results of which will form a "feedback document" to accompany the Communication.

Background: The Commission recognised in their Green Paper that "a high level of copyright protection is crucial for intellectual creation and that copyright ensures the maintenance and development of creativity in the interests of authors, producers, consumers, and the public at large". The Commission highlighted the need to promote free movement of knowledge and innovation as the "Fifth Freedom" in the single market. The Green Paper focused on how research, science and educational materials are disseminated to the public and whether knowledge is circulating freely in the internal market.

EPC concerns: It is vital that, in considering the range of issues and options set out in the Green Paper, the Commission focuses on how best to create a genuine knowledge economy, whereby financial investments in the content business are effectively safeguarded and rewarded, rather than pursuing ways to facilitate uncompensated use of copyright-protected material through new exceptions. The EPC submitted that there is no need to reopen the 2001 copyright directive but that instead further work was needed to ensure application and enforcement of existing rules to underpin the development of new, revenue-generating online business models. EPC is concerned in particular about the idea of introducing a new US-style "fair-use" exception for so-called "transformative" use which could undermine such new business opportunities. Instead EPC suggests that innovative licensing models can easily facilitate the re-use of content for new user-created content services.

The EPC is asking regulators to recognise ACAP as an effective, simple way for rightsholders to communicate their copyright terms and conditions of use online, just as they can through licences offline. The EPC argues that existing copyright legislation should, with the right tools such as ACAP (http://www.the-acap.org), work perfectly well across all means of distribution.

The EPC and the World Association of Newspapers (WAN-IFRA) recently organised a meeting of publishers where significant numbers of publishing leaders signed the Hamburg Declaration on IPR. This was sent to Commissioner's Reding and McCreevy.


Useful docs:

Autumn 2009 - Advertising - alcohol

The EPC is a founding member of the Alcohol and Health Forum set up in 2007 following the Commission's adoption of its Communication on alcohol related harm. Its aim is to support, provide input and monitor the implementation of the strategy outlined in the Communication with the particular aim of reaching agreement with stakeholders on codes of commercial communication implemented at national and EU level. The EPC is also on the Task Force on Marketing Communication. Meanwhile, proposals are being developed also at WHO level which might impinge on the EU work. More news on this due early next year.

EPC concerns: Advertising is under the spotlight with the Commission looking for clear rules at EU level to reduce the exposure of young people to advertising and promotions of alcohol in the media.

13 November

Council to discuss conclusions on action that can be taken at EU level to reduce harmful alcohol consumption.

Expected autumn - Energy Labelling Directive

The directive is one of a series of measures introduced by the European Commission under their programme of consumer and environmental protection. The new proposal focuses mainly on updating the "A to G" efficiency rating system for manufactured goods such as fridges and washing machines.

How does it affect the media?

The Commission's original text did not affect the media. However, the European Parliament has adopted an amendment to the Commission's draft text that has serious implications for the content of advertisements:

"Any advertisement for a specific model of energy related products covered by an implementing measure under this Directive, where technical specifications are disclosed, shall provide end-users with the necessary information regarding energy consumption or energy savings or include a reference to the energy class of the product".

Timing of next steps:

The Commission has been working on a new text since MEPs adopted this amendment but the Commission has now decided that it wants this to be consistent with their tyre labelling directive, causing a delay to publication. However, since the Commission and key MEP - Rapporteur Belet, have said that they both want to keep TV and print media out of the scope of the tyre directive, this stance might help influence the outcome on the energy labelling directive in the media's favour.

EPC position on energy labelling:

The EPC opposes the EP amendment on the grounds that independent, diverse and vibrant media in Europe depend heavily on advertising revenues for funding, and that mandatory information requirements render the advertising less effective and consequently less attractive to advertisers.

Speaking on advertising at the 5 May Plenary meeting, Commissioner Piebalgs took up our points and asked: "How far can the institutions go to promote energy efficient product selling practices without hampering civil liberties of the free press?"

Producers and retailers already give technical information to consumers on a voluntary basis and in compliance with statutory rules about advertising claims, unfair or misleading advertising. If detailed information requirements are mandated by law, this changes the freedom of advertising to a statutory information provision. As a result such advertisements, in particular in static print media, would no longer be attractive for the retailers and producers which would in turn lead to losses of advertising revenue for the media that carry them.

EPC position on labelling and advertising generally:

In addition to the immediate and adverse impact of such an approach on European media, we are further concerned with the dangerous precedent this sets on a fundamental matter of principle. The freedom of commercial speech through advertising is fundamental to the freedom of the media. Mandatory information requirements in advertising, such as the one proposed in this Energy Labelling Directive (and previously in the revision to the provisions on car advertising in the CO2 emissions directive) create a precedent for other labelling directives in the future, turning the freedom of commercial speech into propaganda tools for political purposes with very negative consequences for the freedom of media in Europe.

Indeed, it is often in the media, funded largely by advertising, that citizens can find informative and educational information in editorial reports about everything from the environment and climate change to health and lifestyle matters which in turn activates citizens to change their behaviour. This cannot be achieved by political messages in free advertising.

Advertising - Cars - 2010

This Directive relates to rules concerning consumer information on fuel economy and CO2 emissions for the marketing of new passenger cars, including specific rules on advertising in the media. The Commission is planning a comprehensive review of existing legislation but has put the revision on hold until the new college of Commissioners is in place, probably in 2010.

Meanwhile, the Commission has invited the car industry to sign a European code of good practice on car marketing and advertising. The code has been submitted for approval by the industry but no date has been given for when the Commission might respond.

EPC position:

Given that the Commission favours "media-neutral" rules, and that the existing Directive imposes rules only on the print and outdoor media, the EPC believes that the most proportionate response from the European Commission would in fact be to de-regulate the existing section on advertising on the press (and outdoor) instead of an extension to all media of prescriptive rules on advertising content.

This would be in line with current Commission thinking on the tyre and energy labelling directives. Speaking on energy labelling at the 5 May 2009 Plenary meeting for example, Commissioner Piebalgs asked: "How far can the institutions go to promote energy efficient product selling practices without hampering civil liberties of the free press?"

The same question should be asked of mandatory information in advertisements for cars especially as producers and retailers already give information about fuel efficiency and CO2 emissions to consumers on a voluntary basis and in compliance with statutory rules about advertising claims, unfair or misleading advertising. If detailed information requirements are mandated by law, this changes the freedom of advertising to statutory information provision. As a result such advertisements, in particular in static print media, would no longer be attractive for the retailers and producers which would in turn lead to losses of advertising revenue for the media that carry them which would be disproportionate.

The best media-neutral solution in a revised CO2 emissions Directive would be for there to be a general clause containing a recommendation for advertisements to refer to a web-address or physical place where consumers could find more detailed information, perhaps mentioning the type of information that could be included in advertisements, but without any legal obligation to include each and every category and detail that would normally be found in promotional literature or at a showroom (including virtual showrooms).

Meanwhile the EPC is also calling on the car industry to defend their right to advertise.

Advertising - Food - 2010

A European research project on the effectiveness of food and drink advertising to children covering 11 countries will conclude in 2010. Researchers are consulting children's and teachers' organisations as well as food companies and advertising agencies.

Commissioner Kyprianou of DG SANCO has said that he will consider banning junk food advertising targeted at children if the industry fails to tackle the problem via self-regulation.

Autumn-End 2009 - Data Protection

The European Commission announced a review of the 1995 Data Protection Directive with the launch of a public consultation on 1 July 2009. The Director of DG JLS said this phase will conclude at the end of this year. There will also be further initiatives to complete the review stage. The EPC will be following this closely with regard to the implications for the day to day working practices of journalists (see EPC position https://epceurope.org/issues/data.shtml) but also in terms of how any changes to the law could affect marketing and advertising practices which involve the processing of personal data.

Meanwhile, DG JLS is working on the "Stockholm Process" which called for a Commission Communication on "an area of freedom, security and justice serving the citizen" which deals with every area of freedom from the rights of the child, right of free movement to the protection of personal data and privacy. In the context of data protection, it reads: "The current legal framework introduces a high level of protection. In the light of the speed of technological change, further legislative or non-legislative initiatives may be necessary..." These initiatives include the introduction of a "comprehensive protection scheme... to protect citizens' data within the EU and in its relations with other countries."


It is assumed, therefore, that any revision will take on board the specific recommendations of the Communication.


The Data Protection Directive (officially Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data) is a European Union directive which regulates the processing of personal data within the European Union. It is an important component of EU privacy and human rights law. The directive was implemented in 1995 by the European Commission.

EPC concerns:

Any review of the directive would be unlikely to improve things for the media which has experienced difficulties in practice with the current legislation (see position paper from previous review: https://epceurope.org/issues/data_protection.shtml.

The directive does include a derogation from the rules concerning the processing of certain sensitive date "for journalistic purposes" but this has to be balanced with the rights to privacy making legal interpretation difficult. The EPC will be insisting that any review includes collation of factual evidence from journalists and publishers.

The European Privacy Association (EPA) was launched this year with a mission to bring together European privacy, data protection and security experts to tackle the future challenges of privacy issues due to ever-evolving technological and market developments.

Useful documents:





1.1 TV advertising needs monitoring, says Commission

The European Commission has issued a report on TV advertising concluding that the EU's rules on TV advertising need close monitoring.

In 2007 and 2008, the Commission took legal action and initiated infringement procedures against Spain and Italy for not applying EU rules that limit TV advertising to the 12-minute maximum per hour and not integrating these rules into their national laws. More recently, in March this year, the Commission also warned Estonia that it was not respecting the 12-minute rule.

According to the data collected over the two years, although some TV viewers are switching to new channels and on-demand services, there were no major changes in overall viewing patterns. However, TV viewing time did increase in the UK, Spain and Romania between 2006 and 2008 while it decreased in the Czech Republic, Germany, Belgium, and the Netherlands. On average, Hungarians watched the most TV (260 min/day), while Austrians and Swedes spent the least amount of time watching TV per day (148 and 160 min/day respectively).

The report also shows that almost three quarters of prime-time TV viewing was devoted to European programmes (IP/09/840). EU-wide average broadcasting time for European programmes and films increased from 63.52% in 2005 to 65.05% in 2006. In addition, the average share of independent producers' works broadcast by all European channels in all Member States rose from 36.44% in 2005 to 37.59% in 2006.

The next report on Europe's audiovisual market will be at the end of 2011.

1.2 European digital media and advertising industries welcome U.S. self-regulatory initiative for online behavioural advertising

Brussels, 3 July 2009. The undersigned associations, representing the digital media and advertising industries in Europe, welcome the self-regulatory initiative for online behavioral advertising announced yesterday by a coalition of U.S. industry organisations comprising the American Association of Advertising Agencies (4As), the Association of National Advertisers (ANA), the Council of Better Business Bureaus (CBBB), the Direct Marketing Association (DMA), and the Interactive Advertising Bureau (IAB).

Together with ongoing efforts of leading advertising companies and sectors in several markets, the U.S. self-regulatory initiative will help inform discussions and complement initiatives on online behavioural advertising currently taking place in Europe. We are working closely with our sister trade associations in the U.S., as well as those in other markets, to ensure a coherent industry approach to an issue that is by its very nature global.

We take seriously our shared responsibility with regard to online data protection and consumer privacy and are committed to explore sustainable solutions to facilitate the development of the online advertising market, to the mutual benefit of both the consumer and business.

The fair information principles, particularly transparency and control, which are at the heart this initiative and bedrocks of the European privacy framework, will be key to ensuring that consumers are aware of and have meaningful choices regarding online behavioural advertising practices. We recognise that any European initiative will necessarily need to reflect the specific European legal context, which differs from that in the U.S.

Data protection and privacy

2.1 Data Protection supervisor reports good progress

The European Data Protection Supervisor (EDPS) has issued his second general report measuring progress made in the implementation of data protection rules and principles by Community institutions and bodies, as laid down in the Data Protection Regulation (Regulation (EC) No 45/2001).

The report shows that Community institutions have overall made good progress in meeting their data protection requirements. A lower level of compliance is observed in Community agencies, but the EDPS will be monitoring this closely and will encourage further compliance.

Meanwhile, the European Commission launched a consultation on the revision of the Data Protection Directive.

2.2 Social networks under EU scrutiny

The European Commission has singled out social networking websites as potentially harmful for inexpert users and has recommended new strict rules on the uploading of pictures of other people onto personal pages.

Information Society Commissioner Viviane Reding is pushing the major actors in the sector to adopt a code of conduct aimed at protecting young users Mrs Reding has threatened further action to protect privacy. European privacy watchdogs are suggesting that the users of social networks "should only upload pictures or information about other individuals with the individual's consent".

If applied, this provision would completely alter the way such websites work today and the current practice of sharing pictures and tagging friends' images would be outlawed.

Regulators have gone even further recommending that social networks should clearly inform their users about the potential privacy risks of uploading private information. In addition, "the homepage should contain a link to a complaint facility covering data protection issues for both members and non-members," reads the opinion. The group also advised imposing limits on retaining the data of inactive users. "Abandoned accounts must be deleted," said the council of EU regulators, known as the Article 29 Working Party.



Press freedom

3.1 Symbolic press freedom charter published

Commissioner Reding has launched the "European Charter on Freedom of the Press", a document which apparently has no legal teeth but which the EU plans to use at the point of accession to counter increasing worries about infringement of press freedom by governments in Europe, both within the EU and beyond. Signing the charter will become a condition of entry into the EU in future accession negotiations.

The ten-article charter requires, amongst other assurances, that journalism in all media be "free of persecution, repression and of political interference by government."

The charter is an initiative of the Stern editor, Hans-Ulrich Joerges, Ms Reding and other editors-in-chief of European newspapers and originated during a discussion between the commission and the newspapers in 2007.

The publishers and the commission meet on an annual basis to discuss sectoral concerns.

"The charter's main concern is at last to unify Europe journalistically and to enable all our colleagues to invoke its principles if press freedom is violated," said Mr Joerges at the launch in Brussels alongside Ms Reding.

Some 150 prominent journalists from 28 European states have signed the document, but all journalists are encouraged to do so at the document's online home.

State aid

4.1 Solution proposed for Swedish newspapers

The European Commission has formally proposed appropriate state aid measures to Sweden that would make a Swedish scheme that provides for state support to Swedish newspapers compatible with EU state aid rules.

Some amendments to the Swedish scheme will have to be made, however, to avoid disproportionate market distortion.

The proposals include a gradual reduction in aid ceilings for large metropolitan newspapers and a cap on operation costs. Sweden now has to inform the Commission within three months (which may be extended, if necessary) whether it can agree to the proposed amendments Failing an agreement, the Commission may open a formal state aid investigation.

Competition Commissioner Neelie Kroes commented: "The Commission recognises the importance of media pluralism for the cultural, democratic and public debate in Member States and the importance of newspapers in this context. However, running a newspaper is also a commercial activity and the Commission has a duty to prevent undue distortions of competition and trade resulting from public subsidies. The current economic climate has serious negative implications for the written press, especially for newspapers that do not receive aid".

The Swedish press aid scheme has been in place since 1971, before Sweden's accession to the European Union. It is therefore considered as existing aid and its assessment is subject to a specific cooperation procedure between Sweden and the Commission. The scheme provides, amongst others, for aid to the second largest (and smaller) newspapers in each city/county, with the aim of contributing to media pluralism.

In November 2008, following complaints, the Commission started an investigation and found that the press aid scheme constitutes state aid within the meaning of Article 87(1) of the EC Treaty. Such aid can be compatible with the Single Market if it pursues a goal of common interest, is proportionate and does not give beneficiaries an undue advantage over their competitors.

The promotion of media pluralism and diversity of views is an objective of common interest, and the press aid scheme targets this objective. However, the Commission's investigation found that the Swedish press aid scheme, in its current form, does not meet the proportionality test because it gives an excessive amount of aid to large press groups that publish wide circulation metropolitan newspapers, without fixing a threshold in relation to the total operating costs for publishing the newspapers.

The Commission is suggesting the following amendments:

  • Reduce the aid amounts for large circulation metropolitan newspapers to ensure proportionality. Given the long duration of the scheme and taking into account the implications of the current economic crisis on the media environment, a progressive phasing out from the previous ceiling to the new limit would be acceptable. This would ensure that a sudden reduction of subsidies would not endanger the financial position of the beneficiaries.
  • The ceilings applicable to high and medium-frequency provincial newspapers and low-frequency newspapers can be maintained.
  • Introduce a threshold of total operating costs for publishing the newspaper in order to ensure the incentive effect of the aid and its proportionality.
  • Limit the aid in time (e.g. six years) and carry out a subsequent review of its impact on media pluralism and competition before it could be renewed.


5.1 Google Books: Commission launches consultation - hearing in Brussels 7th September

The Commission has expressed the view that the digitisation of cultural products, including books, is a herculean task that requires close cooperation between right holders and ICT companies, as well as between the public and the private sector. The Commission therefore supports an approach that is open to private sector initiatives and to technological innovation. Ideological answers are certainly not the best way forward for stimulating innovation, creativity and consumer-friendly offers of digital content.

The Commission takes the view that Google Books is a commercial project developed by an important player in the Internet services market and that it is good to see that new business models are evolving which could bring more content to an increasing number of consumers.

However, commercial projects alone certainly cannot cover the public interest dimension of the digitisation of cultural products. The Commission recalls that this is why, back in 2005, the Commission launched the project of the European Digital Library Europeana. This project is based on a close cooperation among cultural institutions in Europe and based on the not-for-profit foundation Europeana in The Hague. Europeana currently includes more than 5 million digitised cultural objects, and the Commission expects this number to grow to 10 million by 2010. The Commission calls on all Member States to step up their efforts and contribute directly to Europeana. It is not logical to lament on the one hand against a private sector project, but on the other hand, to refuse placing all books and products digitised by the national cultural institutions also on Europeana.

The Commission calls on Google to be respectful of intellectual property rights, which are the basis for both creativity and the business model of right holders. However, the Commission also looks with interest to new solutions now tested between Google and right holders in the US for making orphan works (works under copyright where the author cannot be identified) better accessible to a broader public. Finding solutions to the orphan works issue is a very important part of the EU's objective to preserve cultural works. The Commission therefore recommends that stakeholders in Europe look very closely at the discussions in the U.S. to see how the experience made there could best be used for finding a European solution on orphan works.

The Commission has come down against any intervention in the US litigation between editors and Google on the grounds that it is a private litigation and that there appears to be a contradiction whereby some of the European rightsholders complaining against the Google book deal are also part of the settlement with Google in the US.

Meanwhile, the world's largest university press, Oxford University Press, has called for immediate action by the US Congress to prevent Google gaining exclusive rights to exploit the "orphan works" made available through its book search initiative.

Tim Barton, president of the US arm of Oxford University Press, has said "If the parties to the settlement cannot themselves solve this major problem, then at a minimum Congress should pass orphan-works legislation that gives others the same rights as Google," Mr Barton wrote in The Chronicle of Higher Education.

5.2 UK Government publishes Digital Britain report

The UK Government's report, Digital Britain, includes plans to modernise the copyright licensing regime "to endeavour to keep the UK at the forefront of developing innovative and inclusive business models for the digital age".

Enforcement of copyright is also broached and equal penalties for both online and offline infringement are proposed.

The full report can be read at: http://www.culture.gov.uk/what_we_do/broadcasting/6216.aspx.

5.3 Progress on music licensing welcomed

European Commissioner for Competition Neelie Kroes has welcomed progress made towards pan-European music licensing following discussions in the Online Commerce Roundtable. In particular, she welcomes confirmation by French collecting society SACEM that it is willing, in principle, to entrust other collecting societies with pan-European licensing of its repertoire and to act as non-exclusive rights manager for publishers and other collecting societies. She also welcomes confirmation by multinational record company EMI that it is ready to entrust rights managers to offer its repertoire for the whole European Economic Area (EEA) and notes Apple's statements that if iTunes was readily able to license rights on a multi-territorial basis from publishers and collecting societies, it would consider making its content available to all European consumers, including those in EU countries where iTunes is currently not available.

Commissioner Neelie Kroes set up the Roundtable in September 2008 in order to examine ways to reduce barriers to online commerce so that consumers can take better advantage of the opportunities offered by the Internet (see IP/08/1338 and SPEECH/08/437). The report on the Roundtable, just published on the Europa website, outlines the conclusions of the meeting that Commissioner Kroes hosted on 17 September 2008, as well as of a 16 December 2023 follow-up meeting which focused on the distribution of online music.

Commissioner Neelie Kroes welcomed the conclusions of the Report, stating that: "There is a clear willingness expressed by major players in the online distribution of music in Europe to tackle the many barriers which prevent consumers from fully benefiting from the opportunities that the Internet provides. I therefore encourage the major players, in particular publishers and collecting societies, to move quickly to adapt their licensing solutions to the online environment. I will review progress at the next meeting of the Roundtable that I will organise shortly with other major players in the online music market".

Media pluralism

6.1 New Commissioner to decide

The deadline for feedback on the media pluralism study was 10th June but comments will be taken into account for a few weeks afterwards. The new Commissioner is expected to decide on what will happen next after the study.

Around 100 participants took part in a lively and sometimes difficult discussion during a workshop held on 8 June, chaired by Jean-Eric de Cockborne from DG INFSO.

EPC members made clear their opposition to the application of over 160 "indicators" to measure pluralism in a technical, academic manner without due regard for potential adverse impact on the freedom of expression.

During the workshop it was pointed out that, however well done the study was in academic terms, the overriding concern for media companies was the potential for new and more restrictive laws to arise at national level if ever implemented by regulatory bodies, and later for the Commission to extrapolate common themes or risks which might in future form the basis of new intervention at EU level.

At the end of the seminar Adam Watson-Brown, Head of DG INFSO's Media Task Force said that he welcomed the incisive and sometimes passionate contributions as this was an important issue. The Commission would consider now whether or not to publish a factual Communication about the work to date but any future decision on policy would rest with the next Commission.

For access to the study and Media Pluralism Monitor go to http://ec.europa.eu

For more information please contact
Angela Mills Wade, EPC Executive Director on Tel: +44 1865 310 732 or Heidi Lambert on Tel: +44 1245 476 265 or visit www.epceurope.org.